Retroactive Justice: A Critique of Reparations as Moral Policy

Apologies are inherently difficult to consider. At points at which it seems that this notion of an ‘apology’ may be warranted, people, victims, bystanders and even perpetrators alike, often question what such an abstract concept really means. Some argue that all apologies should be founded on a genuine sentiment of remorse, whereas others focus on the reparative value of the apology on the bereaved. Indeed, amidst a time when society witnesses unforeseen scales of civil, political and social polarization, we often interpret history as both a precedent and causation for our current circumstances. From this complex correlation between the past and the present, many instances are born in which groups call for an apology, in one form or another, to account for their current and intergenerational travails. In other words, considering the prominence of post-colonialism and progressiveness as central ideals in the modern world order, it is becoming an increasingly popular view that apologies, or reparations, should be in order to account for historical injustices. This essay aims to explore the broad spectrum of such injustices, their origins and their lasting impacts to ultimately establish where, when and, indeed, why apologies are needed for historical events that are seemingly detached from current society, but, in many cases, can be the basis of entire livelihoods and civilisations.

Rawls, in his infamous work, A Theory of Justice, postulates that socio-economic inequalities can exist as long as they benefit disadvantaged groups such that they can access fair opportunity- this is a doctrine described by its architect as ‘distributive justice’[1]. Indeed, considering many arguments suggesting that historical injustices such as racially based slavery and the Jim Crowe laws, have caused significant socio-economic inequality in the modern day. For one, the economic subjugation of certain individuals, mainly those of African descent in the aforementioned examples, has translated across generations via harms to education and health, alongside deeply entrenched social prejudices which affect the mobility of such groups. And so, most prevalently under a Rawlsian doctrine, there is a strong philosophical standpoint from which apologies and reparations are deserved for many past injustices.

However, the fiercest question of the matter remains that of how societies should determine which of these injustices warrant apologies and reparations from the state, and which do not. This essay explores the following criteria as a resolution to this question: the magnitude of the injustice, its impact on identity and collective memory, and the nature of the state’s role in the injustice.

The most immediately apparent factor in this pivotal question is, perhaps obviously, the magnitude of the historical injustice in terms of both severity and scale. Indeed, severe, widespread injustices tend to leave deep scars on the fabric of society and individual communities: this often means that reparations are an important way in which such scars can be at least partially, if not completely tended to, both economically and socially: a prominent example of this is the Transatlantic Slave Trade. Between the 16th and 19th centuries, it is estimated that approximately 12 to 13 million[2] enslaved Africans were transported across the Atlantic Ocean to North and South America, however this figure is sometimes even disputed to be millions greater. Its widespread nature, in itself, behaves as an important factor in the modern day behind the African American community’s many calls for reparations. However, the magnitude of the injustice was by no means limited to its expanse. In fact, the trauma of slavery (that is, the starvation, violent abuse and bloodbath it entailed) is perhaps the most morally atrocious aspect of this deeply rooted, institutionalised system as a whole. The severity and breadth of this clear historical injustice, primarily towards the Africans who were enslaved, but also to other kinds of subjugated labourers coerced into the system, acts as a powerful testimony towards the proposition for both apologies and reparations. The moral viciousness that the state not only ratified, but actively and continually perpetuated, alongside the vast majority of wider Western society is a clear violation of the Judeo-Christian ethical principles that are supposed to govern the paradigm of society, albeit not being deemed necessarily ‘evil’ by contemporary standards. The criminal sentiment of the Transatlantic Slave Trade, along with similarly shaped historical injustices, is similar to that of murder: there is no victim who can be truly and wholly compensated, rather ephemeral remnants who too, via connections of family, community and social stigmas, suffered from the crimes, to a lesser yet still significant degree than the victims themselves. To continue with this analogy, when a murderer is convicted, the usual form of punishment is a prison sentence, and sometimes, more restoratively, a mandatory apology to the family of the victim. In the absence of any feasible or beneficial way to ‘imprison the state’ for the responsibility that they must inherit from past governments and institutions as a pillar of their authority and credibility, the only true way to reflect the process which typically transpires in murder cases is to both issue an apology to the bereaved, and find alternative ways to compensate for their suffering, that too was inherited from past generations.

Another crucial consideration behind how societies should classify historical injustices in the context of apologies and reparations, is the impact of the injustice on collective memory and identity. Whilst this abstract notion of ‘identity’ may come across as somewhat nebulous, what it denotes with regards to historical injustices directed towards certain communities, is how both external and internal perceptions and expressions of said community are curtailed or distorted in nature[3]. In other words, at the point at which a historical injustice subjugates a certain group, contemporary public perceptions negatively shift in relation to said group: these newfound prejudices are inevitably translated across generations, leading to a continuity of prejudice and social ostracization of this group, harming not only their practical social freedoms and opportunities, but on a more foundational level of culture, their ability of self-expression and understanding. This model of historical injustice is perhaps most prevalent in the case of post-apartheid South Africa. Indeed, the racial injustice witnessed during apartheid not only involved legal and institutional forms of oppression, but more importantly moulded the social paradigm of South Africa to antagonise and marginalise black and minority ethnic communities. For years and even decades after the apartheid’s formal end, minorities were continually excluded from many employment sectors based on private company policies, and socially ostracised in public settings. These racist teachings internalised primarily by the white South African majority tended to be passed down and instilled upon generations to come as part of family values and socio-political doctrine, leading to the continual perpetuation of such hatred and injustice despite legal limitations. As a form of recuperation for both the defined and undefined suffering, South Africa, in a profound act of revisionism, established the Truth and Reconciliation Commission (TRC), tasked with repairing prejudiced public perceptions against BME groups and reframing the social paradigm in a more equitable, progressive light. Instead of focusing on punishments for the perpetrators of such racial injustice, the TRC’s leader Archbishop Desmond Tutu prioritised emotional reparations and ‘national healing’ by granting amnesty to self-aware, apologetic offenders and quite successfully establishing a new public narrative in attempt to heal the wounds of apartheid. Following this drive for an epistemic shift in South African society, it has commonly been testified by both internal minorities and external onlookers that racial hatred notably subsided[4]. What this case study exemplifies is the momentous impact of collective memory on how historically bereaved communities continually experience suffering. More importantly, if a historical injustice has perniciously affected social paradigms to the detriment of specific groups, the government has not only a vested obligation (as per Rousseau’s notion of the social contract), but also the pragmatic capability to alleviate this suffering via forms of apology and both direct and indirect reparations.

Indeed, perhaps the most momentous variable in this question, despite not seemingly obviously so, is the role of the state itself in perpetuating the historical injustice. Often when assessing this discussion, it is easier and more convenient to perceive the propagators of said historical injustice as an irrelevant, cryptic third party, thereby limiting the scope of the question to the circumstances of the bereaved and the government’s socio-political obligations. However, in many instances throughout the annals of history, the state itself has been the chief culprit behind injustices. A valuable example in the context of considering retrospective reparations and apologies is the case of state-sponsored eugenics and sterilisation programs in 20th century America. As scientists and intellectuals increasingly supported the idea of ‘eugenics’ and the ‘well-born’, the movement rapidly evolved and gained immense fundings from both private institutions such as the Rockefeller Foundation, and, indeed, the government itself who aided in the establishment of the American Breeders Association. This translated into the implementation of eugenics legislation, namely immigration restriction and forced sterilisation programs. Sterilisation programs began in the state of Indiana in 1907 but were soon replicated by over 30 other American states. The programs involved the sterilisation of men to treat aggression and criminal behaviour (primarily in African American communities) and women to control their sexuality: since women gave birth to children, they were deemed more responsible for the presence of less desirable ‘defectives’ of society and had a greater obligation to protect the purity of the white race. Across this era of eugenics, roughly 64,000 individuals were forcibly sterilised[5], suffering a loss of bodily autonomy and fundamental dignity as humans. The state’s role in this injustice was colossal: without the active support of the government in expanding, legitimising and enacting eugenicist beliefs and policies, the movement would never have reached the scale or level of impact that it did. In this way, despite not creating the driving idea itself, the government were principally liable in the suffering and grief experienced by citizens in the decades to come. At the point at which the state, a body designed to protect the rights and personal sovereignty of citizens, is derelict in and actively violates these duties, both apologies and reparations are clearly required for the bereaved as a means of restoring trust in the system and accounting for the deprivation of human and civil rights they suffered from. The question then arises of whether a government which played no part in the historical injustice itself can rightfully be held accountable for the wrongdoing of past administrations. The answer to this is simpler than it may seem: at the point at which one government grasps the political torch of its predecessor, it too inherits the liability, reputation, debts and burdens that come with such power. This is largely the rationale behind why compensation schemes across the United States, most prominently in states like Virginia, have been continually implemented even up to 2021. Synoptically, if the state has played a major role in perpetuating a historical injustice, all following governments inherit the responsibility to compensate for the suffering experienced by citizens.

This produces an amalgamation of three principal factors to determine which past injustices deserve apologies and reparations from the state by acknowledging the severity of the harm inflicted, the indirect continuity of suffering, and the state’s own liability behind the injustice.

Ultimately, it goes without saying that many past injustices are deserving of reparations and apologies in isolation. Importantly to this and regardless of its role in said injustice, the state remains the only static, reliable and inevitably accountable entity within a society through which these reparations can be provided: as such, insofar as an injustice is deemed to deserve compensation in accordance with the aforementioned factors, the state should be tasked with actualising and sustaining this compensation in order to remediate the losses of groups bearing intergenerational scars of suffering, grief and anguish.